MURAHARI SRI RAMAN, J.—

THE PRAYER FOR RELIEF:

1. Questioning propriety and legality of Order dated 05.04.2022 of the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.181 of 2020, whereby the petitioners are directed not only to grant Death-cum-Retirement Gratuity ("DCRG", for short) but also restrained from proceeding to recover Time Related Continuity Allowance ("TRCA", abbreviated) for the periods from 20.01.2015 to 30.06.2018, during which the opposite party No.1 was allowed to work beyond 65 years, the instant writ petition has been filed invoking provisions of Articles 226 and 227 of the Constitution of India seeking for the following relief(s):

"In view of the above facts and circumstances the Hon9ble Court may graciously be pleased to allow the writ petition and quash the Order dated 05.04.2022;

And further be pleased to pass any other order/orders as may be deemed just and proper;

And for this act of kindness the petitioner as in duty bound shall ever pray."

1.1. The opposite party No.1-Harish Chandra Sahoo, Gramin Dak Sevak Branch Post Master, had approached the learned Central Administrative Tribunal, Cuttack Bench, Cuttack by way of filing Original Application under Section 19 of the Administrative Tribunals Act, 1985, being registered as O.A. No.181 of 2020, challenging the Orders dated 24.09.2018 and 02.04.2019 of petitioner No.3-Superintendent of Post Offices, Mayurbhanj Division regarding the recovery of TRCA of Rs.5,32,603/- for the period from 20.01.2015 to 30.06.2018 and non- payment of DCRG as also service allowances.

FACTS ADUMBRATED IN THE PLEADINGS:

2. The Opposite Party No.1-Harish Chandra Sahoo (for convenience hereinafter referred to as "GDSBPM") was appointed as EDBPM, later renamed as GDSBPM, at Anlakuda Branch Office by the Superintendent of Post Offices, Mayurbhanja Division, Baripada-petitioner No.3, by virtue of following Letter dated 06.08.1977:

"India Post and Telegram Department Office of the Superintendent of Post Offices Mayurbhanj Division Baripada-757001 Memo No.A-505/PF, Dated, Baridpada, the 6th August, 1977 This office memo of even Number dated 03.08.1977 in which Sri Narendra Mohan Hansda son of late Lacha Hanshda at/PO: Aanlakuda was selected as EDBPM Anlakuda is hereby cancelled.

Sri Haresh Chandra Sahoo son of Sri Jatindra Nath Sahoo At/Post: Anlakuda is hereby provisionally selected as EDBPM, Anlakuda in account with Deuli until further order.

Sri Harish Chandra Sahoo should note that the appointment is purely on temporary basis and will be terminated at any time without notice if found unsuitable.

The appointment does not confer on him any right to claim over any other appointment in the event of the abolition or upgradation of the post.

This appointment is made till the finalization of the case of Sri Motilal Sahoo EDBPM Analakuda under put off duty.

Sd/-

S. Mishra Superintendent of Post Offices

Mayurbhanj Division, Baripada-757011"

2.1. A Declaration Form (Attestation Form) was submitted on 28.10.1977 by the opposite party No.1-GDSBPM duly counter signed by the Assistant Superintendent of Posts, Mayurbhanj Division, Baripada and the Inspector of Posts, Baripada West Sub-Division, Baripada, wherein inter alia it has been noted down that the date of appointment as "21.07.1977" and the date of birth as "20.01.1950".

2.2. The Department of Posts issued Circular bearing No. D.G., P&T, Letter No.40-9/82-Pen., dated 08.12.1983 directing to maintain the Register of Extra-Departmental Agent ("EDA") by the Appointing Authority with an instruction to the Inspecting Authorities to test check during the course of inspection of Branch Office. For convenience, text of said circular is reproduced herein below:

"Maintenance of records to prevent irregular retention beyond 65 years.4 With a view to ensure timely discharge, a register containing the dates of birth, dates of appointment and dates of superannuation of the EDAs should be maintained by the respective appointing authorities. The Appointing authorities after scrutinizing the register once every month should intimate the EDAs concerned, at least six months in advance, the date on which they would be completing the age of 65 years and also inform them that they would cease to be agents after the said date. Formal orders terminating their services should also issue well in time.

Further action should also be initiated for selection of new incumbents at least three months in advance so that the time lag between the discharge of the previous EDA and employing of new EDA is altogether eliminated. The register referred to above to be maintained by the appointing authorities should be test-checked by the Inspecting Officers in the course of inspection of the Offices.

The instructions referred to above will be in addition to those already prescribed in Letter No.5-4/72-ED Cell (I), dated 18.08.1979."

2.3. Vide P&T Board Letter No.40-9/82-Pen., dated 26.06.1982 it has been clarified that "relevant records should be maintained and reviewed properly and the EDAs who attain the age of 65 years should not be retained beyond the age of superannuation. Each case of such irregular retention should be investigated and responsibility fixed". In the said circular it has also been clarified that "the period of irregular retention beyond 65 years of age even after regularisation of the period of such retention will not count for purpose of grant of ex- gratia gratuity".

2.4. Yet another Circular being D.G. Posts Letter No.40- 4/87-PE-II, dated 25.05.1987 has been issued with the following warning:

"Action to be taken against the officials responsible for irregular retention.-

Of late, instances of retention of EDAs beyond dates of superannuation is on the increase. Heads of Circles often approach the Directorate for ex post facto approval. In future, routine ex post facto sanction of such cases by Directorate will not be possible. Whenever it is found that

ED Agents have been retained beyond 65 years due to any lapse on the part of the Sub-Divisional / Divisional Authorities, Heads of Circles will take action against the officials responsible for such irregular retention. Cases referred to Directorate for condonation of irregular retention should invariably indicate the action taken against officials found responsible."

2.5. The Department vide D.G. Posts Letter No.17-307/91- ED&Trg., dated 27.11.1991 directed to prepare the Gradation List of Extra-Departmental Agents, which is extracted hereunder:

"Maintenance of gradation lists of Extra-Departmental Agents at Divisional Level.-

Orders already exists for maintenance of service records of the ED Agents for determining their eligibility for grant of ex-gratia gratuity, length of service for the purpose of taking the recruitment test for induction in regular Group- 8D9/Postmen Cadres, etc.

Having regard to the fact that the maintenance of gradation lists of the ED Agents at Divisional levels would help in prompt disposal of cases relating to ex gratia gratuity, and verifying length of service for the purpose of appearing in the recruitment test, etc., it has been decided that immediate action may be taken to prepare the gradation lists of all the Extra-Departmental Agents at Divisional levels and copies of the same made available to all the recognized service unions. Since along with retirements, etc., there will be fresh recruitments also in the ED cadres from time to time, the Gradation Lists will have to kept updated periodically and copies of the updated Gradation Lists also supplied to the recognized service unions concerned."

2.6. Vide D.G. Posts Letter No.17-173/92-ED&Trg., dated 11.01.1993, the following instructions were issued with respect to retention in service beyond 65 years:

"Ex-gratia gratuity to ED Agents to be paid immediately on their retirement.-

1. ***

2. Notwithstanding the detailed instructions issued from time to time, complaints about delay in payment of ex-gratia gratuity are being received in this office. References also continue to be received in this office after considerable lapse of time from the date of retirement of the ED Agents seeking ex-post facto sanctions of this office to be approved and unauthorized spells of leave exceeding the maximum prescribed limits, irregular retention in service beyond the age of 65 years, etc. In some cases, EDAs are allowed to retire prematurely on medical grounds without the requisite medical certificates from the prescribed medical authority, i.e., Civil Surgeon, and after a lapse of considerable time, their cases are being taken up with this office for relaxation of this requirement. In most of these types of cases, we have observed that the same have been taken up with this office after a delay of anything between 5 and/or even more years. This is not at all desirable. The Service Union has separately proposed an item on this aspect for discussion in the Departmental Committee for EDAs and have demanded that like all the regular Government employees, the EDAs should also be paid ex-gratia gratuity immediately on their retirement.

3. In the context of the aforementioned demand of the Service Union, the matter has been considered in this office and having regard to the fact that complaints about delay continue to be received and so also the cases for regularization of the irregular retention in service beyond the age of 65 years, etc., as referred to in the preceding para. after considerable lapse of time, we have come to the conclusion that delays are taking place as due regard is not paid to the relevant orders. There is no reason why the irregularities of the above types cannot be avoided if proper attention is paid to the maintenance of service particulars of the EDAs and the updating and verification of the same from time to time. There may be other cases also where due to laxity on the part of concerned authorities, delays may be taking place in payment of the ex-gratia gratuity to the EDAs soon after their retirement. This has to be avoided at all costs. You are, therefore, requested kindly to ensure that the extant orders governing the maintenance, updating and verifications of service records, etc., of the EDAs and expeditious payment of ex-gratia gratuity, etc., are observed by all concerned both in letter and spirit. Failure to comply with the same would be viewed seriously and unless otherwise explained satisfactorily, the officers/officials concerned booked suitably. It may also be ensured that all cases of breaks, regularization of spells of authorized and unauthorized leave exceeding the maximum prescribed limits, etc., are referred to and got sanctioned, regularized by the prescribed competent authority well before the ED Agents cease to be in our employment. In exceptional cases where EDAs are retained in service irregularly after the age of 65 years, such irregular retention may also be got condoned immediately. It may also be ensured that while taking up such cases with this office, the particulars of officers/official responsible for the irregularity along with the nature of action taken against him are invariably indicated as in the absence of any mention to this effect, the Finance Advice Branch is not inclined to entertain such proposal and this causes further delay in making avoidable correspondence.

4. Only self-contained proposals duly approved at the appropriate level in Circle/Regional Offices along with service particulars of EDAs may be made to this office. The level at which the proposal is seen/approved in Circle/Regional level should invariably be indicated if the same are forwarded to this office over the signature of lower functionaries."

2.7. The report upon inspection of Branch Office in account with Deuli S.O. under Baripada H.O. on 24.08.1996 showed inter alia following details:

"The B.O. comes under Anlakuda G.P.

2. Establishment of the B.O. comprises of the following:

BPM	Sri H.C. Sahoo	Rs.535/-	24/5/1954	6/8/1977
EDDA	Sri Jayaram Marandi	Rs.369/-	19/2/1945	5/4/1979"

The date of birth of the GDSBPM has been shown as "24.05.1954".

2.8. The name of the opposite party No.1-GDSBPM, placed at Serial No.356 of the Gradation List published on 15.12.2009 prepared in the Office of Superintendent of Post Offices, Mayurbhanj Division, Baripada, shows his date of birth as "24.05.1954". So the date of birth of the Opposite Party No.1 has been taken as "24.05.1954" in in both the Inspection Report of 1996 and the Gradation List dated 15.12.2009.

2.9. Further inspection being conducted, the report dated 20.05.2015 and 10.05.2018 reflected as follows:

"Establishment of the office:

GDSBPM	Sri Harish Ch. Sahoo	24/05/1954	06/08/1977
GDSMD/MC	Sri Ashok Ku. Hasdah	22/06/1993	14/04/2012"

2.10. While the matter stood thus, the opposite party No.1- GDSBPM was relieved by the Inspector of Posts, Baripada West Sub-Division on 27.07.2018 pursuant to Letter No. A-505/PF/Anlakuda BO, dated 25.07.2018 of the Superintendent of Post Offices, Mayurbhanj Division, Mayurbhanj with a direction to discharge GDSBPM from service. The said Letter dated 25.07.2018 is quoted hereunder:

"Department of Posts

Office of Superintendent of Post Offices Mayurbhanj Division, Baripada-757001

To

The IP, Baripada West Sub-Division, Baripada.

No.A-505/PF/Anlakuda BO Dated at Baripada the 25.07.2018.

Sub.: Overstayal in service case-case of Sri Harish Chandra Sahu, GDS BPM, Anlakuda BO in account with Deuli SO.

It is revealed from Transfer certificate, Descriptive particulars & attestation of Sri Harish Chandra Sahu, GDS BPM, Anlakuda BO in account with Deuli SO that the date of birth of Sri Sahu is 20.01.1950. Hence the GDS was due to be discharged from service w.e.f. 19.01.2015. But he has been retained in service till date.

Hence you are here by directed to discharge him immediately and report compliance.

Superintendent of Post Offices Mayurbhanj Division, Baripada"

2.11. The Superintendent of Post Offices, Mayurbhanj Division, Baripada vide Letter No.A-505/PF/Anlakuda BO, dated 24.09.2018 directed GDSBPM as follows:

"To

Sri Harish Chandra Sahu, Ex GDS BPM, Anlakuda BO In account with Deuli SO,

No.A-505/PF/Anlakuda BO-757021 Dated at Baripada the 24.09.2018

Sub.: Regarding overstayal in service

As per office records your date of birth is 20.01.1950 and you were due to be retired from service on superannuation on 19.01.2015. But you were in service till 27.07.2018. An amount of Rs.5,32,603/- (Rupees Five Lakhs Thirty Two Thousand Six Hundred Three) only has been paid to you during the overstayal period i.e. 20.01.2015 to 30.06.2018. (TRCA for the period 01.07.2018 to 27.07.2018 held up).

Hence your are directed to credit the amount under UCR at any post office and submit the original receipt to this office as soon as possible for disposal of the case.

Sd/- Superintendent of Post Offices Mayurbhanj Division, Baripada"

2.12. Against such letter, the opposite party No.1, citing inability to make credit/refund of huge amount of money which was given as duty TRCA for the period he actually worked, made representation dated 09.10.2018 to the Superintendent of Post Offices, Mayurbhanj Division and prayed for release of withheld TRCA as well as ex-gratia Gratuity and Severance allowance. Further representation was also made on 14.03.2019 to the Chief Post Master General. In connection with such representations, the Superintendent of Post Offices, Mayurbhanj Division, Baripada, on 02.04.2019 instructed the opposite party No.1 to "submit Gratuity & Severance claim application through Sub-Divisional Head" and further directed to deposit his already granted duty TRCA. In response thereto, the opposite party No.1 submitted representation to the Superintendent of Post Offices, Mayurbhanj Division on 24.04.2019 indicating non-supply of relevant document to defend his case and requesting him not to insist on recovery and prayed for payment of ex-gratia benefit.

2.13. As no action was taken thereon, the opposite party No.1 approached the learned Central Administrative Tribunal, Cuttack Bench, Cuttack invoking Section 19 of the Administrative Tribunals Act, 1985, seeking following relief(s):

"(a) To quash the order of SPOs, Mayurbhanj Division order under Annexure-A/7, A/8, A/11 and A/13.

(b) To pay residual TRCA for the period from 01.07.2018 till May, 2019 or in the alternative from 01.07.2018 to 27.07.2018.

(c) Direct the respondents to supply the application form for sanction of the ex-gratia Gratuity and Severance Allowance and to sanction the ex-gratia Gratuity and Severance Allowance with interest at the appropriate rate and allow the OA with cost.

And pass appropriate orders as may be deemed fit and proper in the facts and circumstances of the case."

2.14. The learned Tribunal vide Order dated 05.04.2022 while disposing of O.A. No.181 of 2020, directed to pay the DCRG dues of the opposite party No.1-GDSBPM and not to recover the duty TRCA for the period of alleged overstayal, i.e., from 20.01.2015 to 30.06.2018. Relevant portion of the said Order is extracted hereunder for ready reference:

"*** This Tribunal is of the view that the applicant in the present O.A. differs from the position of the applicant in the present O.A. differs from the position of the applicant of the above said O.A. as regards to being aware about his date of birth. The wrongly prepared Gradation List created this confusion and for which this Tribunal is of the view that the applicant should not be punished for working beyond his date of retirement. The Tribunal also finds that the applicant had not misrepresented any facts to overstay and thus claiming the TRCA for the said period of overstayal, i.e., 20.01.2015 to 30.06.2018 during which the applicant had worked and done his duties sincerely. Hence, it is directed that the applicant may be granted the DCRG as due to him till his actual date of retirement as per the service record at Annexure- R/16 and no recovery of TRCA paid to him for the overstayal period be recovered from him.

Accordingly, the O.A. is allowed with above observation.

There will be no order as to costs."

2.15. Aggrieved against said Order dated 05.04.2022 of the Central Administrative Tribunal, Cuttack Bench, Cuttack, the Union of India-petitioners approached this Court by way of filing writ application invoking provisions of Article 226/227 of the Constitution of India.

2. In connection with the averments contained in the writ petition, in the counter affidavit it has been stated by the opposite party No.1 that the petitioners have been maintaining the service record which was under their custody. The opposite party No.1 had no scope for access to such record so that in any way he could be alleged to have been involved in recording the date of birth as "24.05.1954" in place of "20.01.1950". All the material particulars have been furnished to the authority concerned vide Declaration dated 28.10.1997 which was duly countersigned by Assistant Superintendent of Posts and Inspector of Post Offices. However, in the Gradation List prepared by the authority and in the inspection report(s) the authorities have duly acknowledged the date of birth as "24.05.1954". Under such premise, it is unwholesome for the petitioners- Union of India to contend that overstay in the service is attributable to the opposite party No.1-GDSBPM.

3. By way of rejoinder affidavit, the Superintendent of Post Offices, Mayurbhanj Division, Baripada putting the blame on the opposite party No.1 contended that it is the opposite party No.1 who is to be held responsible and asserted that "it is the duty of the opposite party No.1 as an honest Government servant to clarify the position". However, the commission of error on the part of the petitioners has been reflected in paragraph 4 of said rejoinder affidavit, which runs thus:

"That so far as the refund is concerned it is most humbly submitted that if any amount which is Government money (public money) has been transferred to any person without any justifiable account then in order to maintain the sanctity and in order to protect the interest of public and Government, the amount has to be recovered because in no way the opposite party No.1 can be considered to have got any kind of entitlement to that amount which have been paid in excess of after the actual retirement date."

HEARING OF WRIT PETITION BEFORE THIS COURT:

4. Pleadings being completed and exchanged between the respective parties, this Court heard Sri Prabhu Prasanna Behera, learned Central Government Counsel for the Union of India and Sri Trilochan Rath, learned Advocate for the respondent No.1. As conceded by counsel for the both the parties the present writ petition is taken up for final hearing and disposal at the stage of admission.

SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES:

5. Sri Prabhu Prasanna Behera, learned Central Government Counsel urging that the Order dated 05.04.2022 is vulnerable inasmuch as under erroneous perception of facts the learned Central Administrative Tribunal allowed the claim of the opposite party No.1 by distinguishing the case of Niranjan Mohanty Vrs. Union of India, O.A. No.672 of 2019, vide Order dated 04.01.2021. It is vehemently contended that the opposite party No.1 is the best person to know his date of birth as "20.01.1950". Having declared the date to be so way back on 28.10.1977, mere wrong recording of said date as "24.05.1954" in the service record and inspection report(s) cannot protect the GDSBPM. Since he is granted excess amount from 20.01.2015 to 30.06.2018, the petitioners-authorities are justified in issuing notice dated 27.07.2018 in pursuance of instruction dated 25.07.2018 from the Superintendent of Post Offices, Mayurbhanj Division. There being no incongruity in issue of Letter dated 24.09.2018 by asking the opposite party No.1 to refund/credit the amount already paid in excess during 20.01.2015 to 30.06.2018, the learned Central Administrative Tribunal was not justified in allowing the Original Application filed at the behest of the opposite party No.1-EDBPM under Section 19 of the Administrative Tribunals Act, 1985.

6. Advancing his argument Sri Trilochan Rath, learned Advocate for the opposite party No.1 drew the attention of this Court to the official documents, like Gradation List and Inspection Reports of different dates, submitted that the service record being maintained by the petitioners and remained in their custody, there was no scope or occasion for the opposite party No.1 to have access to such record. It is illogical on the part of the counsel for the Union of India to say that the employee should have maintained his own personal record.

6.1. It is further submitted by Sri Trilochan Rath, learned counsel for the opposite party No.1-GDSBPM that the appointing authority, being seized of record, is to ensure timely discharge of Gramin Dak Sevak and to correctly maintain the service records. The upkeep of such records is the duty and responsibility of the petitioners, but they cannot and could not have pleaded the converse. The burden could not have been shifted to the opposite party No.1 by the petitioners. Rather, the petitioners should have realised that the post like GDSBPM could not lay vacant had the opposite party No.1 relinquished charge on 19.01.2015. Therefore, he pursued that the learned Central Administrative Tribunal committed no error by allowing the original application being O.A. No.181 of 2020. The petitioners instead of complying with the terms of said order and granting residual TRCA for the period from 01.07.2018 to 27.07.2018 should not have approached this Court by invoking writ jurisdiction.

6.2. Sri Trilochan Rath, learned Advocate for the GDSBPM by contending that the Central Administrative Tribunal was correct in its approach by bringing forth distinctive feature obtained on facts in the case of Niranjan Mohanty, OA No. 672 of 2019, vide Order dated 04.01.2021, submitted that the petitioners-authorities only to avoid contempt proceeding and to save their own skin have challenged the Order dated 05.04.2022. The authentic documents, viz., the Gradation List and the Inspection Report(s) stand testimony to the fact that it is the authorities who maintained the service record relating to the opposite parties and time and again recorded that the date of birth of the opposite party No.1 was "24.05.1954".

6.3. It is the petitioners who were to keep themselves vigilant: ironically, they have visited the post office of the GDSBPM for conducting inspection on various occasions and recorded specifically the date of birth as

"24.05.1954". It is not proper for the authorities to direct refund of the TRCA from 20.01.2015 to 30.06.2018, already granted in respect of actual days the GDSBPM worked, three years after the date of alleged superannuation on 19.01.2015."

6.4. To buttress his argument, Sri Trilochan Rath, learned Advocate referred to Kailash Singh Vrs. State of Bihar, 2005 AIR SCW 3273 to contend that since the GDSBPM has actually worked during 20.01.2015 to 30.06.2018 without any dispute as to the age and he has been paid TRCA for the said period, thereby he could not be denied the payment for the period he discharged duty. It is, thus, submitted that in view of legal position as set forth in State of Bihar Vrs. Pandey Jagdishwar Prasad, (2009) 1 SCC (L&S) 589, it is unfair on the part of the petitioners to direct refund of the amount already paid on account of period actually worked from 20.01.2015 to 30.06.2018 by the opposite party No.1 as GDSBPM.

SCOPE OF JUDICIAL REVIEW AGAINST THE ORDER OF THE ADMINISTRATIVE TRIBUNAL:

7. The scope of showing indulgence by exercise of extraordinary jurisdiction delineated under Articles 226 and 227 of the Constitution of India to review the decision taken by the learned Central Administrative Tribunal taking cognizance of the material available on record is limited. Thus, this Court, in the aforesaid emerging factual matrix, need not go into the details of evidence to upset the settled factual position as that is not required while sitting in this jurisdiction exercising power under Article 226/227 of the Constitution of India.

7.1. The Hon’ble Supreme Court of India stated in Orissa Administrative Tribunal Bar Association Vrs. Union of India, (2023) 6 SCR 731 as follows:

"The effect of Section 28 of the Administrative Tribunals Act, therefore, was that appeals from the OAT lay directly to the Supreme Court under Article 136 of the Constitution. However, this changed with the decision of this Court in L. Chandra Kumar Vrs. Union of India (1997) 3 SCC 261 [LQ/SC/1997/514] . In its decision in that case, this Court inter alia ruled that:

a. Clause 2(d) of Article 323-A and clause 3(d) of Article 323-B were unconstitutional to the extent that they excluded the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32 of the Constitution;

b. Section 28 of the Administrative Tribunals Act was unconstitutional as were 8exclusion of jurisdiction9 clauses in all other legislation enacted under Articles 323-A and 323- B;

c. The jurisdiction conferred upon the High Courts under Articles 226 and 227 and upon the Supreme

Court under Article 32 of the Constitution form a part of the basic structure of the Constitution; and d. Other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution.

As a consequence of this decision, challenges under Article 226 of the Constitution to the decisions rendered by the SATs lay to Division Benches of the respective High Courts within whose jurisdiction the SATs operated. The Supreme Court9s jurisdiction could be invoked under Article 136 against the decisions of the High Courts."

7.2. In Union of India Vrs. P. Gunasekaran, AIR 2015 SC 545 [LQ/SC/2014/1233] , the Hon’ble Supreme Court of India propounded the following guidelines:

"The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority;

b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence. Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii). go into the adequacy of the evidence;

(iv). go into the reliability of the evidence;

(v). interfere, if there be some legal evidence on which findings can be based.

(vi). correct the error of fact however grave it may appear to be;

(vii). go into the proportionality of punishment unless it shocks its conscience."

7.3. In the case of State of Andhra Pradesh Vrs. S. Sree Rama Rao, AIR 1963 SC 1723 [LQ/SC/1963/105] , the Hon’ble Supreme Court made the following observations:

"The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent Officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or; where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."

7.4. Having noticed aforesaid observation in S. Sree Rama Rao (supra), in Ram Lal Bhaskar Vrs. State Bank of India, (2011) 12 SCR 1036 [LQ/SC/2011/1375] , it has been enunciated as follows:

"8. Thus, in a proceeding under Article 226 of the Constitution, the High Court does not sit as an Appellate Authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re-appreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgment the High Court has re-appreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations leveled against the respondent No.1 do not constitute any misconduct and that the respondent No.1 was not guilty of any misconduct."

7.5. Pertinent here to have regard to the following observations made in State of Karnataka Vrs. N. Gangaraj, (2020) 1 SCR 616:

"8. In State of Andhra Pradesh Vrs. S. Sree Rama Rao, AIR 1963 SC 1723 [LQ/SC/1963/105] , a three Judge Bench of this Court has held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. The Court held as under:

'7. *** The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. ***'

9. In B.C. Chaturvedi Vrs. Union of India, (1995) 6 SCC 749, [LQ/SC/1995/1057] again, a three Judge Bench of this Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The Court/Tribunal in its power of judicial review does not act as an appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under:

'12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the Appellate Authority has co-extensive power to re- appreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India Vrs. H.C. Goel, (1964) 4 SCR 781, this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.9

10. In High Court of Judicature at Bombay through its Registrar Vrs. Shashikant S. Patil, (2000) 1 SCC 416, [LQ/SC/1999/1053] this Court held that interference with the decision of departmental authorities is permitted if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry while exercising jurisdiction under Article 226 of the Constitution. It was held as under:

'16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.9

11. In State Bank of Bikaner and Jaipur Vrs. Nemi Chand Nalwaya, (2011) 4 SCC 584, [LQ/SC/2011/342] this Court held that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be ground for interfering with the findings in departmental enquiries. The Court held as under:

'7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (vide B.C. Chaturvedi Vrs. Union of India, (1995) 6 SCC 749, [LQ/SC/1995/1057] Union of India Vrs. G. Gunayuthan, (1997) 7 SCC 463, [LQ/SC/1997/1155] and Bank of India Vrs. Degala Suryanarayana, (1999) 5 SCC 762, [LQ/SC/1999/597] High Court of Judicature at Bombay Vrs. Shashi Kant S Patil, (2001) 1 SCC 416).

***

12. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceedings invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him.

***

14. On the other hand learned counsel for the respondent relies upon the judgment reported as Allahabad Bank Vrs. Krishna Narayan Tewari, 2017 2 SCC 308, [LQ/SC/2017/6] wherein this Court held that if the disciplinary authority records a finding that is not supported by any evidence whatsoever or a finding which is unreasonably arrived at, the Writ Court could interfere with the finding of the disciplinary proceedings. We do not find that even on touchstone of that test, the Tribunal or the High Court could interfere with the findings recorded by the disciplinary authority. It is not the case of no evidence or that the findings are perverse. The finding that the respondent is guilty of misconduct has been interfered with only on the ground that there are discrepancies in the evidence of the Department. The discrepancies in the evidence will not make it a case of no evidence. The Inquiry Officer has appreciated the evidence and returned a finding that the respondent is guilty of misconduct.

15. The disciplinary authority agreed with the findings of the enquiry officer and had passed an order of punishment. An appeal before the State Government was also dismissed. Once the evidence has been accepted by the departmental authority, in exercise of power of judicial review, the Tribunal or the High Court could not interfere with the findings of facts recorded by reappreciating evidence as if the Courts are the Appellate Authority. We may notice that the said judgment has not noticed larger bench judgments in S. Sree Rama Rao and B.C. Chaturvedi as mentioned above. Therefore, the orders passed by the Tribunal and the High Court suffer from patent illegality and thus cannot be sustained in law. Accordingly, appeal is allowed and orders passed by the Tribunal and the High Court are set aside and the order of punishment imposed is restored."

7.6. The Hon’ble Supreme Court in the case of State of Haryana Vrs. Rattan Singh, (1977) 2 SCC 491 [LQ/SC/1977/147] while dealing with standard of proof and evidence applicable in the domestic inquiry, held as under:

"4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. Ail materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good.

*** The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair common-sense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a ending is certainty available for the court to look into because it amounts to an error of law apparent on the record. ***"

7.7. The Supreme Court in the case of M.V. Bijlani Vrs. Union of India, (2006) 5 SCC 88 [LQ/SC/2006/317] laid down as under:

"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

7.8. Following observation in General Manager (Operations), State Bank of India Vrs. R. Periyasamy, (2015) 3 SCC 101 [LQ/SC/2014/1327] may be relevant:

"11. It is interesting to note that the learned Single Judge went to the extent of observing that the concept of preponderance of probabilities is alien to domestic enquiries. On the contrary, it is well known that the standard of proof that must be employed in domestic enquiries is in fact that of the preponderance of probabilities. In Union of India Vs. Sardar Bahadur, (1972) 4 SCC 618 [LQ/SC/1971/566] this Court held that a disciplinary proceeding is not a criminal trial and thus, the standard of proof required is that of preponderance of probabilities and not proof beyond reasonable doubt. This view was upheld by this Court in State Bank of India Vrs. Ramesh Dinkar Punde, (2006) 7 SCC 212 [LQ/SC/2006/709] . More recently, in State Bank of India Vs. Narendra Kumar Pandey, (2013) 2 SCC 740, [LQ/SC/2013/61] this Court observed that a disciplinary authority is expected to prove the charges leveled against a bank-officer on the preponderance of probabilities and not on proof beyond reasonable doubt."

7.9. It is well-settled that a High Court, in the exercise of its jurisdiction under Article 226 of the Constitution cannot sit in appeal over the findings of fact recorded by a competent Tribunal in a properly conducted departmental enquiry, when it be shown that the impugned findings were not supported by any evidence. Adequacy of that evidence to sustain the charge is not a question before the High Court when exercising its jurisdiction under Article 226 of the Constitution. [State of Madras Vrs. Sundaram, AIR 1965 SC 1103 [LQ/SC/1964/269] ]. The High Court may interfere where the statutory authority has acted without or in excess of jurisdiction or, where it has committed an error of law apparent on the face of record.

DISCUSSIONS AND ANALYSIS:

8. With the aforesaid perspective of exercise of power under Article 226/227 of the Constitution of India with reference to order passed by the Administrative Tribunal, glance at the Circular dated 25.05.1987 would indicate that retention of persons beyond 65 years of age due to any lapse on the part of the Sub- Divisional/Divisional Authorities, Heads of Circle would have to take action against the officials responsible for irregular retention.

8.1. Scrutiny of material placed on record does not reveal that the petitioners have complied with Director General, Posts Letter No.40-4/87-PE-II, dated 25th May, 1987, whereby it has been categorically directed as follows:

"*** Whenever it is found that ED Agents have been retained beyond 65 years due to any lapse on the part of the Sub-Divisional/Divisional Authorities, Heads of Circles will take action against the officials responsible for such irregular retention. Cases referred to Directorate for condonation of irregular retention should invariably indicate the action taken against officials found responsible."

8.2. In the light of said circular if the present case is considered, there is no iota of evidence placed on record by the petitioners-Union of India to suggest that any action has been taken against the erring officials. Nonetheless, it is admitted position on record that the service record has been maintained by the petitioners and the post office of the GDSBPM has been regularly inspected and the Inspection Reports as also the Gradation List clearly maintained the date of birth of the GDSBPM as "24.05.1954".

8.3. The learned Central Administrative Tribunal recorded the factual details as follows:

"3. The respondents have filed their Counter stating therein that the applicant entered into service on 21.07.1977 as EDBPM, Anlakuda BO. On 25.7.2018 the Superintendent of Post Offices, Mayurbhanj Division, Baripada issued a letter to the Inspector of Posts, Baripada West Sub-Division, Baripada to discharge the applicant from service immediately and another letter Postmaster, Baripada HO to withhold the TRCA for the month of July 2018 and arrear amount of the applicant until further orders. Accordingly the applicant was relieved on 27.07.2018 afternoon. The Postmaster, Baripada HO vide letter dated 27.8.2018 intimated to the higher authority that an amount of Rs.5,32,603/- was paid to the applicant for the period from 20.1.2015 to 30.6.2018 (Annexure-R/5) and the Superintendent of Post Offices, Mayurbhanj Division, Baripada vide letter dated 24.9.2018 directed the applicant to refund the said amount. The applicant made representation dated 09.10.2018 with a request not to direct to deposit the said amount of Rs.5,32,603/- and to take action for payment of his residual TRCA to for the period from 01.07.2018 to 27.07.2018, gratuity amount and other retiral benefits. In response the applicant was directed to credit the amount in instalments and he was also intimated that there is no provision as per GDS (Conduct and Engagement) Rules, 2011 for grant of minimum TRCA to GDA who has overstayed beyond 65 years. The respondents further stated that the applicant is liable to refund Rs.5,32,603/- drawn by him towards TRCA beyond his date of retirement after attaining the age of 65 years. ***

He (the applicant) submitted that date of birth i.e. 24.05.1954 as recorded in Gradation List under

Annexure A/6 should be treated as correct one. The respondents on the other hand submitted that the date of birth in gradation list was typographical mistake. Since no documents have been produced by the applicant showing his date of birth as 24.05.1954, this Tribunal cannot accept the said claim of the applicant contrary to documents vide Annexure R/16. This Tribunal also cannot accept that those are concocted documents in absence of any proof. Be that as it may, this Tribunal also cannot agree with the submission of the respondents that gradation list prepared over the years by them have carried the same typographical mistake. The Gradation List are to be prepared after scrutinizing the service records and are supposed to be correct. The applicant was being supplied the same Gradation List purportedly showing his date of birth as 24.05.1954 and he was on assumption that being his date of birth, his date of retirement would be 31.05.2019. Even the respondents department who should have been vigilant only rose up from deep slumber after three years to retire him, stop paying him TRCA and directing him to refund the TRCA from 20.01.2015 to 30.06.2018 for processing his DCRG."

8.4. It is seen that the authentic documents, like Gradation List and Inspection Report(s) stand testimony to the fact that it is the authorities who maintained the service record relating to the opposite party No.1-GDSBPM and time and again affirmed that the date of birth of the opposite party No.1 was "24.05.1954".

8.5. Upon examination of material on record the learned Tribunal came to hold that "wrongly prepared Gradation List created this confusion" and for the said reason the opposite party No.1 is not to be punished for having worked "beyond his date of retirement". It is very much pertinent to note that the learned Central Administrative Tribunal has returned finding of fact to the effect that the opposite party No.1 "had not misrepresented any fact to overstay and thus, claiming the TRCA for the said period of overstayal, i.e., 20.01.2015 to 30.06.2018 during which the applicant had worked and done his duties sincerely". Such finding of fact has not been shown to be perverse or beyond the material on record by the petitioners.

8.6. By recording said finding of fact, the learned Tribunal has directed for grant of DCRG as due to the opposite party No.1 till his actual date of retirement as per service record. It has also been directed that there shall be "no recovery of TRCA paid for overstayal period".

8.7. Since the factual position as narrated by the learned Central Administrative Tribunal has not been cited to be erroneous nor is the proceeding gets vitiated by non- adherence to the principles of natural justice or is there any procedural irregularity demonstrated, this Court has little scope to show indulgence in the impugned Order dated 05.04.2022.

VIEW OF THE SUPREME COURT OF INDIA IN THE CONTEXT OF RECOVERY OF WRONGFUL PAYMENT:

9. It is noteworthy to take note of the view expressed by the Hon’ble Supreme Court of India in the context of over- retention in service beyond the alleged age of attaining superannuation.

9.1. The Hon’ble Supreme Court of India in the case of Kailash Singh Vrs. State of Bihar, 2005 AIR SCW 3273 " (2005) 13 SCC 576 [LQ/SC/2003/1235] observed as follows:

"5. The service-book of the appellant was opened in 1993. The Medical Board seems to have constituted and on the basis of the report of the Medical Board he was immediately retired. In these circumstances, the learned counsel for the respondents has very fairly submitted that there would be no recovery of the salary already paid to the appellant for the period from 01.04.1995 to 24.04.2000. The appellant has actually worked during this period without there being any dispute about age.

6. So far as post-retiral benefits are concerned it is submitted that they may not be admissible to him. We fail to appreciate the submission made on behalf of the respondents in the background of the facts indicated in the earlier paragraph. The respondents took work from the appellant without any dispute. He would obviously be entitled to his salary and there is no reason as to why he should be denied the post-retiral benefits. His total service comes to 32 years. We have already adverted to the fact that the medical report has not been placed on the record, nor as to what is meant by the term "average age", has been explained to us. In the totality of the facts and the circumstances of this case, we find no good reason to deny those benefits to the appellant."

9.2. In State of Bihar Vrs. Pandey Jagdishwar Prasad, (2009) 1 SCC (L&S) 589 " (2009) 3 SCC 117 [LQ/SC/2008/2461] following is the observation:

"17. In view of the aforesaid circumstances, the appellant ought to have deleted the date of birth entered in the service book of the respondent on the basis of his affidavit as the appellant had already accepted the date of birth of the respondent on the basis of his matriculation certificate which was also produced by the respondent.

***

19. It is not needed for this Court to verify the veracity of the statements made by the parties. If at all the respondent entered the second date of birth at a subsequent period of time, the authorities concerned should have detected it and there should have been a detailed enquiry to determine whether the respondent was responsible for the same. It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee.

***

21. In Sahib Ram Vrs. State of Haryana, 1995 Supp (1) SCC 18 this Court has held that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee.

***

29. It should also be kept in mind that the respondent might have expected that the second date of birth shown in the service book was accepted by the authorities for that reason he was allowed to continue in his service and was paid salary. In the absence of any proof that the respondent had manipulated his date of birth by entering a second date at a later stage, and that he had any mala fide intentions to continue his service, beyond his date of retirement, we are of the view that the decision in Radha Kishun Vrs. Union of India, (1997) 9 SCC 239 [LQ/SC/1997/385] would not be applicable in the facts of the present case."

9.3. Having referred to aforesaid Judgment in the matter of Yogeshwar Prasad Vrs. National Institute of Education Planning & Administration, (2010) 14 (Addl.) SCR 22, it has been observed as follows:

"39. In view of a series of judgments of this Court, the appellants are otherwise entitled to the revised pay scale. The amount paid to the appellants- employees pursuant to the grant of higher pay scale should not be recovered unless it was a case of misrepresentation or fraud. Admittedly, neither misrepresentation nor fraud can be attributed to the appellants in C.A.N0.209/2007. In this view of the matter, respondent No.1-Institute would be restrained from recovering any amount which has already been paid to the appellants in C.A.N0.209/2007."

9.4. In Col. B.J. Akkara (Retd.) Vrs. Government of India, (2006) 11 SCC 709 [LQ/SC/2006/920] considered view expressed by the Hon’ble Supreme Court was as follows:

"27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the Circular dated 07.06.1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled [vide Sahib Ram Vrs. State of Haryana, 1995 Supp (1) SCC 18; Shyam Babu Verma Vrs. Union of India, (1994) 2 SCC 521 [LQ/SC/1994/186] ; Union of India Vrs. M. Bhaskar, (1996) 4 SCC 416 [LQ/SC/1996/934] ; V. Gangaram Vrs. Regional Jt. Director, (1997) 6 SCC 139] [LQ/SC/1997/753] :

(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.

(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.

28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.

29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in- service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the Circular dated 07.06.1999 till the issue of the clarificatory circular dated 11.09.2001. Insofar as any excess payment made after the Circular dated 11.09.2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made."

9.5. In Syed Abdul Qadir Vrs. State of Bihar, (2009) 3 SCC 475 [LQ/SC/2008/2493] excess payment was sought to be recovered which was made to the appellants-teachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The appellants therein contended that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellants cannot be held responsible in such a situation and recovery of the excess payment should not be ordered, especially when the employee has subsequently retired. The court observed that in general parlance, recovery is prohibited by courts where there exists no misrepresentation or fraud on the part of the employee and when the excess payment has been made by applying a wrong interpretation/ understanding of a Rule or Order. It was held thus:

"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."

9.6. In State of Punjab Vrs. Rafiq Masih (White Washer), (2015) 4 SCC 334 [LQ/SC/2014/1385] wherein the Court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. It was held thus:

"8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee9s right would outbalance, and therefore eclipse, the right of the employer to recover.

***

18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer9s right to recover."

9.7. See, Thomas Daniel Vrs. State of Kerala, (2022) 4 SCR 606 the view of Hon’ble Supreme Court of India stands firm as laid down hitherto.

CONCLUSION & DECISION:

10. Such being the legal perspective, the petitioners in the writ petition except saying that "the opposite party No.1 is liable for manipulating the record and not approaching the Tribunal with clean hands" vide Paragraph 13 of the writ petition, have not brought on record any proof to suggest that the service records were not maintained by the petitioners. Mere levelling allegation of manipulation against the GDSBPM-opposite party No.1 without putting forth circumstance and scope of his access to the service records maintained by the petitioners-authorities for the said purpose would not lead to drive home the charge that there was misrepresentation or fraud played by the opposite party No.1. In fact, there was mistake on the part of the petitioners in maintaining the service record notwithstanding the fact that they have published the Gradation List and the subject-post office was also inspected on different occasions. In the Inspection Reports also the date of birth was quoted as "24.05.1954".

10.1. In Circular bearing No. D.G., P&T, Letter No.40-9/82- Pen., dated 08.12.1983, it has been desired that the register was required to be maintained by the appointing authorities and the Inspecting Officers were instructed to test-check the date of birth in the course of inspection of the Offices. It was impressed upon all concerned vide D.G. Posts Letter No.40-4/87-PE-II, dated 25.05.1987 that cases referred to Directorate for condonation of irregular retention should invariably indicate the action taken against officials found responsible. Further, in D.G. Posts Letter No.17-173/92- ED&Trg., dated 11.01.1993, it is categorically found mentioned that in exceptional cases where Extra- Departmental Agents are retained in service irregularly after the age of 65 years, such irregular retention may be condoned. The authorities may also ensure that while taking up such cases with the Directorate, the particulars of officers/officials responsible for the irregularity along with the nature of action taken against them are invariably required to be indicated as in the absence of any mention to this effect, the Finance Advice Branch would not be in a position to entertain such proposal.

10.2. Reading of the Order dated 05.04.2022, it is transpired that the learned Central Administrative Tribunal, Cuttack Bench, Cuttack has returned the finding of fact that the Union of India-petitioners have admitted that "the date of birth in Gradation List was typographical mistake". Nevertheless said Tribunal also noted that since no document was produced by the opposite party No.1 showing his date of birth as "24.05.1954", the claim of GDSBPM could not be accepted. Be that be, the learned Tribunal observed that it "cannot accept that those are concocted documents in absence of any proof".

10.3. Appreciating records/documents produced before the Central Administrative Tribunal, it has recorded finding that the Gradation List was prepared over the years by the petitioners on scrutiny of service records and are supposed to be correct. The opposite party No.1, being supplied with such document, he was under impression that his date of birth recorded as "24.05.1954" was correct reflection of fact and his date of superannuation would be "31.05.2019".

10.4. Therefore, having regard to the above facts and circumstances, the learned Tribunal was of the opinion that it is unjust and inappropriate for the petitioners to rise from deep slumber and make attempt to recover the alleged excess payment made to the opposite party No.1 after efflux of three years of date of his retirement by taking note of the date of birth as "20.01.1950".

10.5. It is not disputed nor denied that the custody of service record was with the petitioners. It is also not the case of the petitioners that the Inspection Reports were wrong. The petitioners have also not apprised this Court with regard to action taken against the erring officials. Mere making statement that the opposite party No.1 has manipulated the service record would not suffice, particularly when the Declaration dated 28.10.1977 as duly counter-signed by the authorities concerned clearly mentioned about the date of birth. Thus, there is no scope for saying that there was misrepresentation on the part of the opposite party No.1.

10.6. Though it is not fact on record, in the wildest of the dreams if at all it is stated that there was fraudulent entry of date of birth in the service records as alleged, it should have come to the notice of the authorities during the course of service of GDSBPM. Erroneous recording of date of birth could have been detected during the inspection conducted by different authorities at different occasions. Interestingly enough, none of the inspecting officials had ever noticed such fact during their inspection(s). Hence, it clearly points to one conclusion that the gross negligence is attributable to the petitioners and the lapse took place on the part of the authorities concerned. Under such premise, the opposite party No.1 cannot be held responsible for having worked beyond his date of superannuation as per date of birth declared while entering into service.

10.7. Even if the opposite party No.1 was paid after 20.01.2015 till 30.06.2018, i.e., the period of "overstayal", as the said payment was made on account of actual days the opposite party No.1 worked, no recovery can be effected nor can he be directed to refund such amount. The mistake in recording date of birth, being attributable to the petitioners, as they are the custodians of the service record, it is unfair for them to have issued letter dated 24.09.2018 intimating that TRCA for the period 01.07.2018 to 27.07.218 has been held up with a direction to refund Rs.5,32,603/-.

10.8. At this stage, this Court cannot revisit the factual aspects of the dispute; nor can there be re-appreciation of evidence, which has been considered by the fact- finding forum. The view of the Central Administrative Tribunal was essentially based on fact on analysis of evidence available on record. Thus, this Court is conscious of the restrictive nature of jurisdiction under Article 227 of the Constitution of India. Conceding to what is submitted by the petitioners-Union of India would be to make reappraisal of evidence, which would project as if this Court is sitting in appeal. This Court cannot proceed to vary with the opinion of the learned Tribunal based on material produced before it. The petitioners have not demonstrated any procedural irregularity. Thus, it becomes the duty of this supervisory Court to desist in intervening when it is found that findings of the learned Central Administrative Tribunal were not perverse.

10.9. Well-settled three situations may be spelt out to ascertain as to when a finding on facts or questions of law would be perverse; these are:

(i) Erroneous on account of non-consideration of material evidence, or

(ii) Being conclusions which are contrary to the evidence, or

(iii) Based on inferences that are impermissible in law.

10.10. None of the said facets has been shown to have been breached by the learned Tribunal in arriving at its conclusion while disposing of O.A. No.181 of 2020. Thus, it appears to this Court that prudent decision has been taken by the learned Central Administrative Tribunal, Cuttack Bench, Cuttack which does not warrant interference.

11. In the totality of the facts and in the circumstances of the case, this Court does not find good reason to vary with the conclusion arrived by the learned Central Administrative Tribunal, Cuttack Bench, Cuttack vide Order dated 05.04.2022 passed in O.A. No.181 of 2020.

12. Having found no illegality or irregularity in the Order dated 05.04.2022 passed in O.A. No.181 of 2020 by the Central Administrative Tribunal, Cuttack Bench, Cuttack, with the aforesaid observation, this writ petition stands disposed of accordingly, but in the circumstances without any order as to costs.